Did the FBI Bungle the Tsnarnaev Investigation?

On April 25, Foreign Policy published an article I wrote on the Boston bombing investigation. Titled “Did the FBI Bungle the Tsnarnaev Investigation?” the article is meant to explain some facts about the FBI investigation not readily apparent from reading accounts and opinions in the main stream media.  The article can be found in it’s original form at this link: http://www.foreignpolicy.com/articles/2013/04/25/fbi_tamerlan_tsarnaev_investigation?page=0,0&wp_login_redirect=0

For simplicity sake I have posted the entire, unedited article here. Please read.

The FBI is taking a lot of heat in the press and from Congress for how it handled its 2011 investigation of Tamerlan Tsarnaev, which was opened after Russian officials fingered him as an extremist. Critics have charged that the bureau closed its inquiry without continuing surveillance after it failed to find any connection to terrorism. And, on Wednesday, Senator Richard Burr went a step further, alleging that the bureau had ignored follow-on requests from Russian officials. The suggestion, obviously, is that the bureau brushed aside clear warnings that could have prevented the Boston Marathon bombing.

But it didn’t. Individuals familiar with the FBI investigation have confirmed to me that Russia made no official requests to the bureau beyond its original request. These individuals also said that Russian officials did not respond to the FBI’s requests for additional information and noted that such behavior is not unusual: Russia’s intelligence service, the FSB, has often failed to proactively aid the FBI’s counterterrorism efforts — it has been more concerned with appearing cooperative than with providing actual assistance.

What’s more, it is clear that the majority of the FBI’s critics simply don’t understand how terrorism investigations work. Despite the fact that the bureau’s responsibilities were significantly expanded after the September 11 attacks, there are very tight restrictions that govern the investigation on U.S. soil of potential national security threats.

The FBI’s procedures for investigating terrorism today are a legacy of the Church Committee investigations into its counterintelligence program, which targeted domestic radicals in the 1960s and 1970s. The committee found the bureau had engaged in widespread unauthorized surveillance, wiretapping, and break-ins, and had illegally opened U.S. mail. Those findings spawned rules known collectively as the Attorney General’s Guidelines (AGG) for General Crimes and the AGG for National Security Investigations, which established standards for opening and closing investigations and restricted what sort of investigative tools the FBI could use for each. No longer would the FBI be able to indefinitely investigate an individual without probable cause to believe that a federal crime had been committed or that a national security threat existed.

These guidelines worked fairly well until the investigation into Zacarias Moussaoui, believed to have been the 9/11 plot’s 20th hijacker. Initially arrested for immigration violations a month before the attacks, the FBI suspected Moussaoui was involved in a terrorism conspiracy based on his attempt to learn how to fly a 747 aircraft — even though he had no prior flight experience. The bureau’s Minnesota office wanted to search his residence and computer, but officials at FBI headquarters and the Department of Justice decided that the AGG for National Security Investigations did not permit them to seek a warrant under the Foreign Intelligence Surveillance Act (FISA). That law required the FBI to establish probable cause that Moussaoui was acting as an agent of a foreign power and that the primary purpose of the warrant was not for criminal prosecution. Failure to meet these criteria would violate the concept of the FISA “wall,” which restricted the ability of federal law enforcement officials to cooperate and share information with intelligence agencies. The wall meant that intelligence agents could not share any FISA warrant information with law enforcement agents working on the same subject. At that time, the FBI had insufficient probable cause for a regular criminal search warrant.

The result, of course, was that law enforcement missed an opportunity to stop the 9/11 attacks, and that debacle was part of the impetus behind the Patriot Act, which amended FISA, lowering the standard from probable cause to reasonable suspicion, and allowing for the sharing of intelligence with agents working on criminal prosecutions. To account for the wall’s collapse — and the increasing number and complexity of terrorism cases — the FBI director commissioned the bureau’s legal advisors to rewrite the old guidelines. The first edition of the new Domestic Investigations and Operations Guidelines, or DIOG, was published in January 2008 and later updated. These guidelines for investigative activity are what governed the FBI’s response to the Russian inquiry on Tamerlan Tsarnaev.

The DIOG created a new category of investigation called an assessment. Each assessment was required to have an authorized purpose and an identified objective: “The basis of an assessment cannot be arbitrary or groundless speculation, nor can an assessment be based solely on the exercise of First Amendment protected activity, or on the race, ethnicity, national origin or religion of the subject.” That means that someone like Tamerlan Tsarnaev could espouse sympathy for militant Islam without fear of investigation by the FBI — as long as he didn’t cross the line into activity that constitutes a violation of federal criminal law or a threat to national security — because the Constitution protects his right to freedom of speech and religion. Tamerlan, as a permanent resident alien, a green card holder, was entitled to the same constitutional protections as any American citizen.

The request from the FSB would have resulted in the opening of a Foreign Police Cooperation case — functionally the equivalent of an assessment. We know that the Boston field office then checked bureau files, records, databases, telephone communications, and any prior investigations into Tamerlan’s activities. But Foreign Police Cooperation cases, like assessments, do not allow agents to use any legal process, such as a search warrant, in conducting their inquiry, and much like assessments, they are routine. As the last step, the FBI interviewed Tsarnaev and his family. According to its April 19 press release, “The FBI did not find any terrorism activity, domestic or foreign, and those results were provided to the foreign government in the summer of 2011. The FBI requested but did not receive more specific or additional information from the foreign government.”

To do anything more than this — that is, to move the inquiry of Tamerlan Tsarnaev from a Foreign Police Cooperation matter into the more involved predicated investigation known as a preliminary inquiry — the FBI would have needed reasonable suspicion that he was breaking the law or presented a documentable threat to national security. It was the responsibility of the investigating office, in this case the Boston field office, to independently develop information or probable cause to open a predicated investigation against Tamerlan. Based on what the FBI — and the CIA — are reported to have known at the time, that higher standard did not exist.
If a preliminary inquiry had been opened, the substantive differences would have been the time allowed — 90 to 180 days, versus 30 to 60 days, to complete the investigation — and the ability to obtain search warrants and to conduct physical and possibly electronic surveillance of the subject. Given that the Boston office probably had much higher priority targets while it was assessing Tamerlan and that the Russian information was minimal at best, it is highly unlikely that the FBI conducted physical surveillance beyond what was required to identify him and get a sense of his daily activities. At any one time, a large field office like Boston can be working dozens of full field investigations and hundreds of preliminary inquiries. The FBI director has instructed field offices to leave no counterterrorism work unaddressed, so triaging a foreign police cooperation case like Tamerlan’s would have been important to maintaining investigative equilibrium.

Assessing whether the FBI bungled the Tamerlan inquiry requires understanding not only what is authorized under a Foreign Police Cooperation case, but also what is not. The DIOG generally requires FBI agents to use the “least intrusive method” possible and emphasizes that the FBI is “responsible for protecting the American public, not only from crime and terrorism, but also from incursions into their constitutional rights.” Therefore the idea that the FBI could conduct indefinite surveillance of any individual suspected of terrorism without an ongoing reasonable suspicion of federal criminal activity flies in the face of both the bureau’s manpower capabilities — which are not unlimited — and the responsibility to protect individual civil rights.

Much has been made of the fact that the FBI was unaware of Tamerlan’s subsequent trip back to Russia in 2012. Little criticism is being raised, however, regarding the FSB’s responsibility to provide information about that visit — information that the FBI is on record as having requested. It is hard to believe that the FSB — having initially requested that the FBI investigate Tamerlan because it feared he would link up with extremists in Russia — would have allowed him to travel in the country unobserved and uninvestigated. Rather, based on my experience, the FSB would have initiated a vigorous internal security response to someone they regarded as a potential enemy of the state. The real question is what they learned about Tamerlan’s activities in Russia and why they didn’t share it with the FBI.
Despite the anger we feel over Tamerlan Tsarnaev’s involvement in the bombing of the Boston Marathon, the killing of three spectators at the race, and the cold-blooded murder of a police officer, both he and his brother Dzhokhar were considered United States Persons under the law at the time the Russians made their request. That means that they were protected from unnecessarily intrusive investigative techniques by both the DIOG and the U.S. Constitution. The FBI did not bungle the Tamerlan inquiry. It followed the law.

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Thoughts on Homeland Security

Where’s the Beef?

This blog is supposed to be about homeland security. All aspects of homeland security. It aspires to be a scholarly discussion regarding doctrine, theory, counterterrorism, domestic terrorism, emergency management, countering violent extremism, intelligence, cyber, immigration, risk mitigation, resilience, response, recovery, WMD, gun control, crime control, intelligence–led policing and a myriad of additional topics in no particular order. And the practitioner application of all of the above.

It will be mostly about trying to find wicked solutions for wicked problems.

Unfortunately, 11 years after 9/11, the term homeland security has become a bloated answer to everything. As well as bit much to swallow for one lonely blog. Now that I am over my writer’s block – for the moment – I wanted to dwell a little bit on what I believe the problem is with the current state of homeland security. We’ll get to doctrine, theory and intelligence in later posts.

First, let me define my terms. In my opinion, homeland security primarily refers to the domestic enterprise that developed following the attacks on 9/11. During the immediate aftermath, Core al-Qa’ida “remained a potent, highly capable and extremely dangerous terrorist network” (Mefford, 2003), ⁠ and the major national security threat to the homeland. In those hallowed days homeland security was, first and foremost, about counterterrorism within the continental United States (CONUS); about preventing another devastating 9/11-style attack by transnational terrorist groups. That was the meat and potatoes of homeland security. Everything else was gravy.

To address the domestic threat, President Bush ordered the FBI to prevent any further attacks without fail. He also initiated significant changes to both the investigative and intelligence structure of the Executive Branch, resulting in the “largest reorganization efforts [sic] since the passing of the National Security Act of 1947” (Clovis, 2006, p. 1). This new cabinet–level department was “composed of nearly 180,000 federal employees, drawn from parts or all of twenty-two units of government, including the Coast Guard, the Secret Service, elements of the Department of Justice, INS [sic], security guards at airports, and Customs” (Ridge 2008, p. 131).

Unfortunately, the creation of the Department of Homeland Security (DHS) and the subsequent absence of any successful follow-on attacks of the homeland by al Qa’ida or any of its affiliates, associates, or inspirational followers elevated the gravy of homeland security to the main course. Like any good bureaucracy looking to justify its raison d’êtra, DHS took the main course, ground it up, mixed it up with fillers, extenders and sub-priority gravies, topped it with a mashed potato mixture of ineffective policies, programs and initiatives and served it up as the Shepherd’s Pie of homeland security.

I blame Katrina. (More about that in a later post).

Now, I love Shepherd’s Pie, especially around St. Patrick’s Day, when the gravy is made with Guinness Stout and a nice Harp lager accompanies it. But it is no substitute for rare roast beef, prime rib on the bone, or a nice Easter leg of lamb swimming in garlic and rosemary. To tell the truth Shepherd’s Pie is nothing more than leftovers. Much like the metaphor DHS has become over the years.

Leftovers.

I’m sure that the legacy agencies with long, honorable and successful histories now comprising DHS hate that term. But that is what they have become. And all because in the final version of The 9/11 Commission Report (Kean & Hamilton, 2004), the Commission accused the intelligence community of having failed to “connect the dots” (p. 408) and “share information” (pp. 257, 356, 400, 539).

Put them all together under one head and they will be forced to share information.

But that’s not how it works in the real world. At least not in this practitioner’s experience. Somebody has to be in charge. Somebody has to lead change, drive change, and foster change. And right now that somebody is not DHS. Because the preventative war on terror within the homeland is not a paper war, nor a cold war, nor an intelligence war, nor a public relations war. At home it is a real, by gawd, law enforcement shooting war with people out there who want to blow us up. And I’m not just speaking of transnational radical Islamist groups. There are more than enough violent American domestic terrorism groups around to keep the FBI very busy. Not to mention the on-going financial institution and white-collar fraud that really threatens our national security.

So maybe it is time to stop eating leftovers and engage in a national debate on what constitutes real homeland/hometown security. Maybe it’s time to re-think the DHS model in light of sequestration, the winding down of the overseas war on terror and design a doctrine and theory of what constitutes homeland security, not just a patchwork of leftover goals, programs and agencies. Enough of the Shepherd’s Pie approach to homeland security.

Of course, that’s just my opinion. I could be wrong.

References:

Clovis, S. H. (2006). Federalism, homeland security and national preparedness: A case study in the development of public policy. Homeland Security Affairs, 2(3) Retrieved from http://www.hsaj.org/?article=2.3.4

Kean, T. H., & Hamilton, L. H. (2004). 9-11 commission report. Washington, D.C.: Government Printing Office. Retrieved from http://govinfo.library.unt.edu/911/report/index.htm

Mefford, L. A. (2003). The state of the terrorist threat facing the United States. Retrieved from http://www.fbi.gov/congress/congress03/mefford062703.htm

Ridge, T., & Bloom, L. (2009). The Test of Our Times: America Under Siege…And How We Can Be Safe Again. New York, N.Y.: St. Martin’s Press.

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Time To Start Writing Again

Time to start writing again.

I spent the past year and a half transitioning from full-time law enforcement professional to full-time Mr. Mom, with all that entails. Along the way I nursed a broken wrist, concussion, surgery, physical therapy, a pension half the size of what I expected, and a marriage that suffered from my lack of a “real” job. There was a withering real estate market, a non-existent job market, a spouse unhappy at her own job, Grandma moving back to California because she hated me, and the completion of my long delayed “not the master’s thesis I wanted to write,” but the master’s thesis I finished.

Time to tap out my life on a keyboard, one post at a time.

There were starts of some notable projects. Tales from the Insane Asylum was one, chronicling the tribulations and insanity of trying to raise 5-year-old twin boys at the age of 57. Work on developing a true-life film project that never materialized. Two policy books on domestic and homeland intelligence doctrine, one FBI novel (based on a real case), starts and stops with several scholarly papers. But none ever got beyond the outline stage. I bought a writer’s program (Scrivener) to help me organize my thoughts. I even stopped commenting on homeland security columns and blogs that dearly interest me. I was blocked, both literally and figuratively.

But Grandma is back.

The lesson is you never win an argument with your wife that starts with the words, “Your fucking mother…!” [Just kidding honey, you know I love your mom!] — Busted!!

Bottom rail on top now, Massa!

La Suegra is caring for the boys so I can find work. Only there isn’t any. I spend my days at Starbucks, Peets and the local library living the life of an internet hobo, making friends with all the other jobless, filling out on-line applications for work I really don’t want, re-writing my resume ad nauseum, and learning that despite 35 years of law enforcement, work as an FBI criminal profiler, an alphabet soup of security clearances, pre and post-9/11 executive program management, and a Master’s Degree in Security Studies, nobody want’s you unless you are Certified.

Certifications are those initials you put behind your name that attest that you have paid outrageous amount of money for books, classes and tests to a professional organization to officially recognize your 35 years of experience in the field. CPP (Certified Protection Professional); PSP (Physical Security Professional); PCI (Professional Certified Investigator); CEM (Certified Emergency Manager); CISSP (Certified Information Systems Security Professional), even academic degrees like PhD, along with a myriad of sub-certifications in each field. It used to be that the only certification that a man in my position needed was a credential that said Retired FBI Special Agent.

We do it to ourselves.

I am the first to admit that when I have an ingrown toenail that needs to be seen by a doctor, I look for one that is Board Certified in that particular sub-specialty. But the concept that a 25 year old with CISSP certification is preferable to a former FBI program manager with 10 years of information technology program management and infrastructure/key asset experience, an MA in Security Studies from the Naval Postgraduate School, expired TS/SCI clearances, and a wealth of knowledge about criminal and national security cyber intrusions is ludicrous.

But I digress.

OK, time to go. The old man sitting across from me at Starbucks is starting to talk to himself. “I was important once, but nobody listened. They never listened, never listened. I knew they were wrong. Gee, this coffee is hot. I coulda’ been a contender. Four score and seven years ago…” That’s going to be me in a couple of years. If not sooner

I don’t really want to post this because, like the old man sitting across from me this morning, I have lost all confidence that anyone is listening. That anyone cares what I think anymore. But to paraphrase Shakespeare: My writing ’tis not so deep as a well, nor so wide as a church-door; but ’tis enough, ’twill serve.

For today.

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Welcome to All Things Homeland Security!

Well, it’s official. After 28 years, most recently as the Senior Assistant Special Agent-in-Charge for Counterterrorism and Intelligence in Seattle, Washington, I have retired from the FBI.  It has been a long and tremendously rewarding experience, with an organization which, despite its flaws, remains the premier investigative agency in the world.

First, a little bit of background on me.  I began my law enforcement career in 1977 with the Los Angeles Police Department (LAPD).  As an LAPD police officer I worked in some of the highest crime area in Los Angeles, including the 77th, Southeast, and Rampart Divisions, as well as in Wilshire and Narcotics Division as detective.   In 1984, I left the LAPD for the FBI.

In the FBI my career has primarily centered on counterterrorism and counterintelligence matters.  I have served in the field in the Los Angeles, San Diego, San Juan, and Seattle Divisions.  At FBIHQ, I served at the Training Division, Quantico, Virginia, where I trained as a criminal profiler under John Douglas and was a member of the original Behavioral Science Investigative Support Unit, National Center for the Analysis of Violent Crime.  I later also served in the FBI’s Inspection Division.

There is a backstory regarding my retirement this week, which I will share sometime in the future.  Suffice to say, it was more than time for me to move on.  Where this new journey will take me, I don’t know.  The point of this blog, however, is to try to comment occasionally on the world of domestic counterterrorism policy as it affects Homeland Security, using my experience in law enforcement to discuss the radicalization process, terrorism law, and the political process.  The Constitution places considerable restrictions within the United States on how the domestic terrorism threat is addressed, so there will be also discussions regarding how to deal with the threat given the current set of investigative tools allocated to law enforcement and the Homeland Security community.   And, since this is my blog, on other topics of interest to me, as they occur.

As a former member of the United States Intelligence Community I am very much restricted in what I can say or comment on based on my prior employment with the FBI and my former access to classified information.  Which is why, at least initially, I will be restricting myself to the area of right and left-wing extremism within the United States, and hate motivated crime.  These are generally areas where the groups and cases are criminal in nature and not subject to classification issues.  I also have to be careful regarding my obligations for pre-publication review by the FBI.  So until I work these issues out, I will not be commenting on specific FBI policies or procedures, no matter how inane or ludicrous (oops!).

This blog is a work in progress. I hope that, over time, both the writing and the content will improve enough that you will come back to consider what I have to offer.  In the interim be safe, be proud of America, and take care of your family.  In the end, they are all you have.

Regards,

Dave

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